Does Geoblocking Your Own Country Still Count as Trade Mark Use?

Both parties in this new CJEU reference from Austria run a cooperage business. The claimant, Fassbinderei Klaus Pauscha GmbH, owns the Austrian marks PAUSCHA and KLAUS PAUSCHA for wooden barrels and related goods. The defendant, PA. Fassbinderei GmbH, sells competing barrels under the sign Pauscha in various countries, but says not in Austria, via the domain pauscha.at.

After the claimant won a preliminary injunction over use of Pauscha, the defendant geo-blocked Austrian IP addresses. Anyone who slips through sees a disclaimer saying the site isn’t meant for the Austrian market. Even so, search results for Pauscha or pauscha.at show both businesses next to each other, and the defendant’s staff at its Austrian office use @pauscha.at email addresses. The claimant wants an injunction covering the domain and the email addresses, both in and outside Austria.

The referring court has no doubt this would infringe if the site were actually reachable in Austria. The tricky bit is what geo-blocking and the disclaimer change, and whether there’s still “use” under Article 10(2) of the Trade Mark Directive. Citing Daimler, the court noted use requires active behaviour and control, and that running the site from Austria under an Austrian domain could itself be use in advertising under Article 10(3)(e), even if the content is aimed abroad.

It also drew on Tradeinn, where the CJEU said trade mark functions, not just territoriality, shape how far a national mark’s protection reaches, sometimes catching acts abroad that are effectively aimed at the home market. Here it’s the reverse, foreign targeting from a home base, but the court wondered if the same logic holds. If protection stopped at websites actually visible in Austria, foreign customers confused by the similarity between the two names could still end up mistaking one business for the other, potentially undermining the claimant’s rights.

On the geo-blocking and disclaimer point, the court flagged L’Oréal v eBay, which said online ads only infringe if they target consumers in the protected territory, but that case dealt with conduct happening abroad, not this reverse setup. It also asked whether the geo-blocking itself might breach the Geo-Blocking Regulation, or fall within its exceptions.

Worth noting the Anne Frank case reached a similar point in copyright, where effective geo-blocking ruled out a communication to the public, so similar reasoning could carry over here. But the real crux seems to be the defendant’s Austrian base. Strip that out and keep everything else the same, and the Austrian domain alone probably wouldn’t establish use in Austria. The EU trade mark rules cut the other way when a business is actually seated there: exporting branded goods from Austria counts as genuine use of an Austrian mark, and export itself is listed as an infringing act, as is affixing the mark to goods within the territory. There’s also an argument from the trade mark’s functions, since Austrian consumers who mistake the defendant for the claimant, then find they can’t reach the site they were looking for, might just buy elsewhere instead. On that view, targeting only matters where the infringing conduct happens abroad, not where it starts at home. Interesting to see what the Advocate General makes of it.